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FCC ready to tap returned TV spectrum with new white spaces order

As the media has reported extensively this week (for example here and here) the FCC is poised to tap into the television spectrum to allow the use of that spectrum on an unlicensed basis, potentially leading to a wave of innovative unlicensed devices, including potentially turbo-charged Wi-Fi. On the tentative agenda released recently for the next open Commission meeting, to be held next Thursday, September 23rd, the Commission has included an item entitled: "TV White Spaces Second MO&O: A Second Memorandum Opinion and Order that will create opportunities for investment and innovation in advanced Wi-Fi technologies and a variety of broadband services by finalizing provisions for unlicensed wireless devices to operate in unused parts of TV spectrum."

As watchers of the TV white spaces issue will recall, the Commission adopted an Order in late 2008 to permit the operation of unlicensed devices in the so-called "TV white spaces", which is the spectrum in the TV band that is not actively occupied by a television station in a particular geographic area. (An earlier advisory by Davis Wright Tremaine summarizing the Commission's 2008 Order can be found here.) Following the adoption of that Order, over a dozen parties sought reconsideration of the Commission's decision; those petitions remain pending. It is not clear whether the proposed Order would be an Order on Reconsideration, but presumably it will address the issues raised by these petitioners. In addition, the NAB (National Association of Broadcasters) and others filed an appeal in the Court of Appeals for the D.C. Circuit seeking to challenge the FCC's white spaces Order. That appeal is on hold pending the Commission's resolution of the Petitions for Reconsideration. Despite the unresolved objections, in late 2009, the FCC moved forward with putting a spectrum management structure in place that would establish a privately maintained database that would permit coordination in order to locate unused spectrum in the TV band in a particular area. We summarized this step in an earlier blog entry here. In early 2010, nine parties submitted proposals to be designated TV Band Device Database Managers, but to date the matter remains pending.

Now, with the announcement of next week's agenda item, it appears that the FCC is ready to move forward aggressively to allow the use of the TV spectrum on an unlicensed basis. Chairman Genachowski has touted the TV white spaces as a platform for innovation and development. In particular, it is seen as a way to expand Wi-Fi and extend broadband service, which in turn would take pressure off of existing wireless spectrum. On the one hand, the use of the TV spectrum on an unlicensed basis is a simple and artful way for the Commission to "return" the spectrum recaptured by the DTV transition to the spectrum pipeline. Opening the spectrum to unlicensed devices would allow parties to use the frequencies without the need for an FCC auction and would allow for the tapping of returned channels on a piecemeal, market-by-market basis, which avoids the issue of trying to aggregate contiguous television channels for use nationwide. In contrast to the clearing of TV Channels 52-59 and 60-69, which was mandated by Congress and factored into the DTV transition from the beginning, there is no clear or easy path for clearing more TV channels nationwide barring a radical restructuring of the DTV Table of Allotments, which would undoubtedly be heavily contested by broadcasters in light of the substantial investments made and disruption brought by the recently completed digital transition. Furthermore, if unlicensed devices are developed and deployed in the TV spectrum to provide Wi-Fi broadband access, this would potentially alleviate some pressure on the wireless carriers and forestall the much-warned-of and oft-debated "spectrum crunch", which is one of the main driving factors in the National Broadband Plan.

On the other hand, deploying hundreds of thousands if not millions of unlicensed and unaccountable devices into the television spectrum could have a significant impact on the future of Mobile DTV, as well as on the ability for consumers to receive the signals of local TV stations in their homes. The fact that the Commission is moving quickly and touting the white spaces as a way to release prime spectrum would seem to be a further indication by the Commission that it does not view over-the-air (OTA) TV signals to be as critical as they once were, notwithstanding the fact that Commission bent over backwards to ensure that broadcasters preserved and replicated their former analog OTA service as they were required to spend hundreds of millions converting their stations to digital. The importance of the OTA TV signal and consumers' reliance on that signal, however, might change rapidly in the near future with a widespread introduction of Mobile DTV, or as folks cut the cable cord and replace cable service with a combination of over-the-air signals and video over the Internet. In adopting rules and opening the TV spectrum, it will be essential that the Commission ensure that interference protections, frequency coordination efforts, and unlicensed devices all work as anticipated and do not infringe on the reception of over-the-air television signals.

Regardless of where one stands on the use of the TV white spaces, and whether the FCC is picking winners and losers by advancing particular devices, services, and innovations to the detriment of existing license holders and industries, the issue is moving forward and will present some fascinating issues in the future. For example, if a video program is broadcast over-the-air on a TV channel by a television station, it is subject to numerous restrictions and regulations, including the prohibition on indecent material, limitations on commercials in children's programming, rules governing political advertising, etc. However, if a video program is transmitted through the Internet, which is then, in turn, streamed into the home via a vacant television channel, there would be no such restrictions, despite the fact that it is an identical video program that is being delivered via the same television spectrum. In that scenario, it would be possible to essentially provide a broadcast-like service on a broadcast TV channel but with no broadcast restrictions and with no license. Previously, when the Commission reallocated portions of the reclaimed television Channels 52 to 69 for commercial wireless services, it required that if the new licensees of the reauctioned 700 MHz spectrum provided "broadcast-type services" then those services would be subject to all of the applicable broadcast rules. In the hypothetical posed above, however, there would be no new licensee providing a licensed service, but rather an unlicensed Wi-Fi operation permitting access to the Internet via the television spectrum. And, with the FCC pushing for universal access to broadband, the differences between television and the new media seem to disappear. What effect this evolution of media and technology has on the foundation of broadcast regulation remains to be seen.